In United States v .Russell, No. 18-11202 (May 4,
2020) (Wilson, Branch, Restani), the Court vacated the defendant’s
922(g)(5) conviction after trial based on Rehaif.
At trial, the district court excluded as irrelevant the
defendant’s immigration file. That file
showed that, although he overstayed his visitor status, a U.S. citizen filed a
petition to classify him as her spouse (which was granted), and he sought to
adjust his status based thereon. The
first petition was subsequently withdrawn, but it is unclear whether the
defendant knew that when he was arrested. Applying plain error on appeal, the Eleventh
Circuit concluded that Rehaif rendered the exclusion of his immigration file
an error that was plain. It also
concluded that the defendant had shown that, but for the error, the outcome of
the trial would have been different. The
Court reached that conclusion because the defendant had consistently challenged
his immigration status throughout the district court proceedings, and the jury
did not hear any evidence showing that he believed he was illegally present. The Court also found that, because this error
deprived him of a defense, the fourth prong of plain error was satisfied as
well.
Judge Branch dissented, opining that the entire record
showed that he knew he was illegally present.
She emphasized that he knowingly overstayed his visa, and he knew that
he was already married elsewhere, so he knew that he could not be validly re-classified
as the spouse of a U.S. citizen.
